LASKY & LASKY

[2010] FamCA 68

FAMILY COURT OF AUSTRALIA

LASKY & LASKY [2010] FamCA 68

FAMILY LAW – ENFORCEMENT – Of binding financial agreement and child support agreement – Declaration sought – Incomplete financial evidence and disclosure – Evidence given by husband in interim proceedings to be transcribed and placed upon Court file – Further affidavits and procedural orders – Adjournment to Registrar – Costs order

APPLICANT: MS LASKY

RESPONDENT: MR LASKY

FILE NUMBER: MLC 7195 of 2008

DATE DELIVERED: 19 JANUARY 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 19 JANUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR STRUM

SOLICITOR FOR THE APPLICANT: TAUSSIG CHERRIE & ASSOCIATES

COUNSEL FOR THE RESPONDENT: DR INGLEBY

SOLICITOR FOR THE RESPONDENT: KELLY & ASSOCIATES

Orders

1. THAT the wife’s Amended Initiating Application filed 18 December 2009 and the husband’s Response filed 17 November 2009, insofar as they seek interim procedural orders, be adjourned to 23 March 2010 at 10.00 a.m. before Registrar Field (the parties be at liberty to raise any matter of urgency and seek transferral to Judicial Duty List that day).

2. THAT paragraph 3 of the interim procedural orders sought in the husband’s Response to Initiating Application filed 17 November 2009 be dismissed.

3. THAT on or before 4.00 p.m. on 2 February 2010, the husband comply in full with his obligations under paragraph 6.5(a)(i) of the Section 90C Financial Agreement between the parties dated 4 August 2008 (“the Financial Agreement”).

4. THAT the husband (but without any admission of the necessity for same) be and is hereby restrained from howsoever charging or otherwise encumbering the 2000 Lexus 470 motor vehicle the subject of paragraph 6.5(a)(i) of the Financial Agreement.

5. THAT until further order and without prejudice howsoever to the wife’s right to enforce the Financial Agreement and the Binding Child Support Agreement between the parties dated 4 August 2008 (“the Child Support Agreement”), the husband pay or cause to be paid to the wife the total sum of $5,000 per month commencing 1 February 2010 and on or before the first day of each calendar month thereafter on account of his financial obligations to the wife pursuant to the said agreements.

6. THAT the wife have leave to issue further Subpoenae to be returnable on or before 9 March 2010 in the Subpoena List at 9.30 a.m. before Registrar Field. 

7. THAT on or before 4.00 p.m. on 19 February 2010 the husband: 

   a)fully comply with his disclosure obligations pursuant to paragraph 4 of the orders of this Honourable Court made 17 November 2009;

   b)without derogating howsoever from the husband’s disclosure obligations pursuant to paragraph 4 of the aforesaid orders or otherwise, the husband provide to the wife copies of:

   i)all documents relating to the disposal by him of the Mercedes motor vehicle in or about November 2009 to Teller Automotive Group;

   ii)all correspondence (including by email), agreements (including drafts) and all other documents howsoever between the husband and any company or trust associated with him and any company, trust ,entity, director(s) and shareholder(s) within or of the K Group of companies from 1 January 2007 and thereafter;

   iii)the original “stand alone” agreement in relation to the S Joint Venture. 

8. THAT on or before 4.00 p.m. on 19 February 2010.the husband make, file and serve an affidavit deposing in detail to:

   a)the monies in the order of $3.5million (approx) owing to him and/or the G Enterprises Trust in respect of the S Joint Venture project including details of the particular entity or entities in the K Group of companies that owe or owed monies to him and/or the said Trust (and the amounts thereof);

   b)his dealings with the K Group of Companies (identifying the specific company or companies) pursuant to which he alleges that the monies owing to him and/or the G Enterprises Trust were reinvested in the L and B joint ventures;

   c)by which entity or entities in the K Group he asserts that he and/or any company or trust associated with him is owed funds, with particulars of such amount/s and anticipated payment date(s)

   and annexing all supporting documents.

9. THAT there be liberty to apply.

IT IS ORDERED NOT BY CONSENT

1. THAT the husband pay the wife’s costs of an incidental to this day fixed in the sum of $3,400 with a stay for 120 days or such further period as may be ordered upon proper application by the husband.

IT IF FURTHER ORDERED BY CONSENT

1. THAT the evidence of the husband given under affirmation be transcribed, placed upon the Court file and made available to both parties. 

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

IT IS NOTED that publication of this judgment under the pseudonym Lasky & Lasky is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7195 of 2008

MS LASKY

Applicant

And

MR LASKY

Respondent

REASONS FOR JUDGMENT

1. This matter is before me in the Judicial Duty List.  Mr Strum of Counsel appears for the applicant wife.  Dr Ingleby of Counsel for appears the respondent husband.  The matter was before me on a number of financial and commercial issues arising out of the parties’ execution of a binding financial agreement and a child support agreement.

2. The amended application of the wife sought a declaration as to the binding nature of that financial agreement, and otherwise interim enforcement orders, or compliance orders, in respect of matters alleged to have arisen by way of the financial non-performance of the husband.

3. The husband’s response was to acknowledge the currency of the financial agreement dated 4 August 2008, but otherwise to seek restraining or consequential orders in respect thereof.  Each party had filed an affidavit and the background was before the court.  It was somewhat an incomplete financial history and did not cover the current and recent past financial circumstances.  I therefore suggested to experienced Counsel appearing for both parties that the husband volunteer to give evidence, and this he did on his affirmation.

4. That evidence will be transcribed, placed upon the court file and made available to the parties.  What his evidence highlighted was the financial circumstances as he presented them to the court, consequential upon the development of a commercial property at S.  The way it was explained by the husband was that the moneys have been quarantined by his majority partner(s) for future property developments in L and B.

5. I make no finding as to the accuracy of that evidence at this stage, but it does provide somewhat of an updated background for the wife to pursue her ongoing inquiries, investigations and further subpoenaed material.  What is clear is that the husband has discontinued making financial payments, either pursuant to the child support agreement or otherwise pursuant to the binding financial agreement and his current and past obligations there under.

6. Again, I make no finding as to any reason, or the appropriateness of such reasons of the husband, and they are all matters for another day.  The husband has filed an affidavit of documents that I described as providing “scant information”.  It was very limited and brief and certainly not in compliance with the previous order of the Senior Registrar and the Schedule to that order.

7. I do understand that there was correspondence passing between solicitors and further documents have been produced.  I well understand that there was an open offer for meaningful discussions proposed by the husband’s solicitor in her letter of 14 December 2009, and those documents are exhibits before the court.

8. In his oral evidence this day, the husband was frank by way of a disclosure that his cessation of payments perhaps was in part related to his own financial circumstances, but the timing of such payments ceasing also related to a particular intent to bring the wife and her legal advisers to the negotiating table and to try and change the payment structure, or at least the timetable of payments pursuant to the various agreements.

9. There has been substantial out-of-court discussion.  I have a minute of order of what the wife proposes.  Dr Ingleby has, before his client left Court for health issues of a close partner, been able to obtain some instructions to, in part, agree and in part oppose, these proposed orders.  There are two matters in particular upon which I have made rulings.  The first is to dismiss the interim application of the husband as to paragraph 3 where a restraint was sought by him against the wife “from doing any act which will cause the husband to become bankrupt”.

10. I do not intend to make such order and on the material before me I would not contemplate such an order.  In any event, not only is it premature, I would regard it as likely being beyond the scope of power of this Court on the facts as outlined.  Having said that, I leave open whether a differently drafted application on different factual circumstances, may or may not be made at a future date.  On that application, on what I now know, I have indicated to counsel that I would not permit that to remain ongoing and it is to be dismissed.

11. I record that I do not take such a view of paragraph 2, and insofar as a deferral is sought of the enforcement of the binding financial agreement until the husband regains financial capacity, that is a matter that can remain alive and be consolidated with the wife’s applications and be listed before Registrar Field on 23 March as the adjourned hearing date.

12. I am open to the listing before an available Judge in the Judicial Duty List on that day, but only if genuinely required and that is at the discretion of Registrar Field, and I refrain from now referring this matter to that Judicial Pre Trial List.

13. Additionally the wife seeks an order for costs of and incidental to this day.  Those costs are fixed in the sum of $3,400 by her counsel on the basis of $2,200 on brief and $1,200 on solicitor’s appearance and work and assistance in preparing the proposed minutes of order over lunch.

14. Dr Ingleby opposes any costs order, but otherwise does not join issue with the quantum, but certainly, if and when a costs order was made, has issues as to any stay in the payment thereof. Section 117 of the Family Law Act 1975 prescribes the basis upon which a costs order may, in any particular circumstance, be made. The starting point is that each party should primarily pay his or her own costs. The exception thereto is in circumstances where it is just that a costs order be made.

15. How a court determines a just outcome is resolved by a careful analysis of each of the relevant factors under section 117(2A). I have carefully considered and evaluated those factors. There is no legal assistance for either party. The wife has been somewhat successful, and therefore the husband somewhat unsuccessful in the outcome of these orders. The financial circumstances of the parties are generally known to the court by virtue of the financial statements filed and the further evidence of the husband given on his affirmation this day.

16. Clearly money is tight.  The wife has limited or minimal income and her assets are bound up with the binding financial agreement and ultimately the payment to her of her property settlement pursuant to that document.  The husband has consultancy income from an overseas based company of $7000 per month.  His prior consultancy of an additional $17,000 per calendar month from his property development employment, was said by him, to cease in November of last year.

17. There was a period between May and November of last year where the husband had the luxury of both consultancy incomes.  On the evidence before me, his current income is from that one offshore source only, of $7,000 per annum.  He clearly has a very real capacity for greater work in consultancy and acknowledged that he can and would be looking for a further source of income.

18. He lives in a home with his new partner and religious wife, but all of those financial circumstances are yet to be tested and their relevance ascertained.  The wife has the very predominant care and responsibility for the four boys of this marriage, not just education fees, but the day-to-day expenses and the upkeep of her home, and that is a primary expense which goes as to her financial circumstances.  She lives in rented accommodation and at some financial risk as to her occupancy of her current home.  The husband has secure accommodation as his partner owns their home in which she and her four children reside with him.

19. Conduct of the proceedings is a matter of some importance, both as to the level of past financial disclosure and the content and circumstances of the affidavit of documents and adequate and reasonable discovery of documents and financial information current and relevant.

20. On balance, and determining what is a just outcome, I propose to order that the husband pay to the wife costs fixed in the sum of $3,400.  I will stay the payment for four months, or otherwise as a court, upon proper application, may thereafter determine.  I will ask counsel for the wife in presenting orders in accordance with these reasons and his earlier minutes to incorporate that costs order as being not by consent, but an order of the court.

21. I will have these brief ex tempore reasons transcribed, placed upon the court file and made available to both parties.  At the very early stage of these enforcement proceedings it is open to the court to foreshadow that, without significant cooperation between solicitors and financial disclosure and a meaningful and genuine approach by each of the husband and wife, this matter could become complex, longstanding and financially very expensive for both parties.

22. On the current evidence, and without making any findings, it is open to concern that there is limited available assets for this family, and in particular for the support and upbringing of the children, though all of that is within the context of the quarantining of moneys from past property developments within the current projects at L and B.  I do not predict future evidence or financial developments, but the message to the parties is abundantly clear that they must be financially prudent and wise in their investigations and expenditure, and I record those early, somewhat preliminary, observations at this stage so that in the months or years ahead they might reflect on the outcome of these proceedings.

23. Hopefully, common sense will apply, sooner rather than later, and both parties will endeavour to conclude their financial settlement with each other and the child support obligations as negotiated.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: